US Court of Appeals to hear Rajapakse war-crimes case

[TamilNet, Friday, 24 August 2012, 03:59 GMT]United States Court of Appeals for the District of Columbia Circuit issued the briefing schedule Monday for the appeal against the dismissal of the war-crimes case against Sri Lanka's President Mahinda Rajapakse. The appeal was filed by three Tamil plaintiffs/ appellants against Rajapakse for complicity in extrajudicial killings of plaintiffs relatives in violation of the Torture Victims Protection Act (TVPA). The case, first filed at the lower court, was dismissed in February 2012 by Judge Kotelly after the U.S. State Department intervened to assert that, as a sitting head of state, Rajapakse was immune from litigation.

The complaint filed in 2011 at the District Court for this case alleged multiple violations of the TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

The appeal will be heard by a panel of three judges, unless the appellants request and if the court grants an en banc hearing. U.S. State Department has filed a motion to submit an amicus brief (an unsolicited legal opinion provided by a third party to assist the court in deciding the matter) on behalf of the appellee Rajapakse.

Plaintiff/Appellants' attorney, Bruce Fein told TamilNet, "Our opening brief is due October 2, 2012. The opposition brief by Sri Lanka's sitting President Rajapaksa is due November 1, 2012. Oral argument before the U.S. Court of Appeals will probably be held in the early months of 2013.

"We argue that the TVPA applies to "an individual" who
perpetrates extrajudicial killings under color of foreign law with no
exceptions for sitting heads of state; and, that torture or extrajudicial killings are so morally reprehensible and repugnant to civilized life that no government can authorize the malignity.

"Every Tamil in the United States should seek to attend the oral argument to be held in Washington, D.C., and to protest before the U.S. State Department because of its running to the defense of Rajapaksa on the ground that sitting heads of state are shielded from TVPA suits in the Secretary of State so decrees," Fein said.

Tamils Against Genocide (TAG), a US-based activist organization that seeks judicial redress to victims of war, and which is the sponsor of this case on behalf of the appellants, said in a press release, "Since alleged facts are presumed true at this phase, the appellate challenge to the court's dismissal of charges of crimes against humanity against Rajapakse will test the split in American human rights civil jurisprudence on the issue of whether individuals possess head-of-state immunity or not for jus cogens norm violations as a matter of law.

"The intervention of the State Department in support of Rajapakse's immunity at the trial phase, and the status of the United States as a party to the case at the appellate phase, tend to illuminate the Obama administration's self-contradictory posture on the issue of Tamil justice in post-Mullivaikaal Sri Lanka," TAG said.